Thursday, August 29, 2013

In a decision that is completely unprecedented under American law, Judge Michael A. Ponsor of the Federal Distict Court for the Springfield Division of Massachusetts has denied a motion to dismiss a complaint brought against Pastor Scott Lively by Sexual Minorities Uganda, a foreign association of LGBTIs based in Kampala. The attorneys for the plaintiff are being furnished, presumably gratis, by the Center for Constitutional Rights in New York City, an organization which boasts that it "use[s] daring and innovative legal strategies which have produced many important precedents. CCR is often 'ahead of the curve' in both identifying a problem and in suggesting novel or radical legal responses which, over time, become accepted and respected precedents and theories." (CCR acknowledges receiving substantial financial support from far left-wing donors such as George Soros' Open Society Institute and the Bertha Foundation.)

The novelty and extreme reaching of Judge Ponsor's decision is difficult to grasp and appreciate on first reading through its 79 pages. It reads on the surface like a normal judicial decision, citing authorities and precedent to support what it purports to decide. What is most glaring about its conclusions of law, however, is what the decision does not spell out it is doing:

Judge Ponsor relies upon the Rome Statute of the International Criminal Court ("ICC") for his definitions of "persecution" and "crime against humanity", which the complaint alleges Pastor Lively aided and abetted by his support for the anti-gay actions and agenda of members of Uganda's government. However, the United States has never ratified the Rome Statute (President Clinton signed it, but never submitted it to the Senate for ratification), and does not recognize it as binding law. (The Obama Administration cooperates with the ICC on specific prosecutions which it deems advance its interest.)

Judge Ponsor acknowledges that no current international treaty or compact, including the Rome Statute, makes discrimination against persons on account of their sexual orientation expressly subject to its terms, but finds wiggle room in various "savings clauses" of those documents (which allow, e.g., "other grounds that are universally recognized as impermissible under international law") for his holding that such discrimination in Pastor Lively's case by Ugandans against Ugandans could amount to a "crime against humanity".

Judge Ponsor holds that Pastor Lively, who visited Uganda twice in 2002 and then not again until 2009, could be regarded as a "co-conspirator" with a member of the Ugandan legislature who introduced proposed legislation against homosexual behavior (the bill never passed). The opinion recognizes that had Pastor Lively been instrumental in proposing legislation to the Massachusetts legislature, he would have been protected by the First Amendment right to petition his government -- but since he advocated for the legislation in Uganda, he can be charged with "aiding and abetting crimes against humanity."

Judge Ponsor also holds that Pastor Lively may be held responsible in Massachusetts for the alleged anti-gay sentiment aroused in Uganda by his authorship of two books published in the United States in 2007 and 2009 and describing and attacking the gay rights agenda in the United States, even though the plaintiff organization could not allege that any Ugandan police or government officials who implemented that country's own anti-gay agenda against its members had actually read either book.

In a final reach, Judge Ponsor declines to apply Ugandan law to the offenses of civil conspiracy and negligence alleged in the complaint -- because Uganda does not recognize the tort of civil conspiracy, while Massachusetts does, and because the concept of "duty of care" under Ugandan negligence law was unclear. Recognizing that the plaintiff could not sue Pastor Lively in Uganda for these offenses, Judge Ponsor throws open the doors of his courtroom so that the plaintiff will have a forum for its grievances.

This decision, of course, is not the final word in Pastor Lively's case; it finds only that the plaintiff has stated a claim under international and Massachusetts law, so that its case may proceed to the discovery stage. But it serves as a harbinger of the activist agenda that gradually is using our judicial system (which is all too eager, in many cases, to be so used) to achieve the laws and rights it is unable to enact through the ballot box.

There is much more information about the parties and the court proceedings to date at this page, and you can download all of the important documents to date at this page. Further background is in the articles here, here and here. The New York Times ran an article in January 2010 about the conflicts caused by the proposed Ugandan legislation and its supporters from America which you may read here.

It is a miserable thing in a way. But over the years I have watched Mexico gradually stumble towards freer markets and common law practices while the United States oozes into Statist ethics, organic law, and subjugation of the citizen to the will of the State. We have as a family been active in Mexican commerce, operation of tourism businesses, and we have our little retirement home there in the interior. And it becomes more difficult each time I drive north to make the effort to do so. Please understand that I am a 360 year American native of mainly Anglo/Saxon and German/Saxon, Hessian, and Prussian background with a bit of Cherokee. Honourably discharged, Texan, Republican, rightwing conservative. I'm just tired of watching what has happened to the Church and what the perversionists are doing to our culture. I would, at this point, just prefer to be in my lesser surroundings and watch them improve, instead of home where things are better and becoming worse.El Gringo Viejo

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